A Tale of Two Trump Tweets: Is It Harder to Prove Defamation in Social Media?

Last month, a New York trial court dismissed a complaint against Donald J. Trump and others brought by political consultant and commentator Cheryl Jacobus that alleged, in part, a defamation claim (libel) based on tweets by Trump. While the case is notable because it involves Trump and his penchant for tweeting personal attacks, it is also notable because it provides additional guidance on how the courts are handling defamation claims based on statements made via Twitter (and other social media networks).

The two Trump tweets at issue came on the heels of televised comments made by Jacobus regarding Trump and his campaign. Trump’s tweets, in addition to containing demeaning personal insults, implied that Jacobus made negative statements about Trump as revenge for being turned down for a job with Trump’s campaign.

Under New York law, the first element of a defamation claim is a “false statement.” Thus, an expression of opinion, as opposed to an assertion of fact, cannot be the subject of a defamation action. This is true no matter how offensive the statement. As such, the court acknowledged the statement “went hostile” as nonactionable speculation, hyperbolic rhetoric, and pure opinion. Additionally, Jacobus didn’t argue the insults (“a real dummy,” “really dumb,” and “major loser, zero credibility”) were anything other than opinion.

Thus, the question before the court was whether Trump’s statements that Jacobus was rejected after she begged for a job were defamation. To answer this question, the court turned to an interesting examination of context, explaining that “context is key” and that a “purportedly defamatory statement’s broader social context and surrounding circumstances must also be analyzed in terms of the content of the statement ‘as a whole, its tone and apparent purpose.’” Specifically, context was examined in several important ways:

First, the court looked at the word “begged” itself and found it to be “a loose, figurative, and hyperbolic reference to the plaintiff’s […] state of mind and is therefore, not susceptible of objective verification.”

Second, the court looked at the tweets in the context of “the familiar back and forth between a political commentator and the subject of her criticism.” The court found that “the defensive tone of the tweets, having followed plaintiff’s negative commentary about Trump, signaled to readers that plaintiff and Trump were engaged in a petty quarrel.”

Third, the court looked at the tweets in the context of “the Republican presidential primary and Trump’s regular use of Twitter to circulate his positions and skewer his opponents and others who criticize him.” The court reasoned that his tweets about his critics “are rife with vague and simplistic insults” and deflect serious consideration. However, the court did note that Trump’s “strategic and almost exclusive use of Twitter to advance his views arguably distinguish this case from those where heated rhetoric, with or without the use of social media, was held to constitute communications that cannot be taken seriously.”

Fourth, the court looked at the medium (the Internet and social media) itself to provide context. The court noted the Internet encourages a “freewheeling, anything-goes writing style” and that “‘epithets, fiery rhetoric or hyperbole’ advanced on social media have been held to warrant an understanding that the statements contained therein are ‘vigorous expressions of personal opinion,’ ‘rather than the rigorous and comprehensive presentation of factual matter.’” The court then concludes, rather bleakly, that “[i]ndeed, to some, truth itself has been lost in the cacophony of online and Twitter verbiage to such a degree that it seems to roll off the national consciousness like water off a duck’s back.”

All this suggests there isn’t a simple test to determine if a tweet, even one that could be found to convey facts and not just opinion, is defamatory. It isn’t enough to look at the tweet in isolation; rather, the words used, where it falls in a sequence of events, and the broader social context are all factors that influence whether a statement should be viewed as opinion or fact. Finally, one may also need to consider the medium itself to see if statements made through the medium lean toward “vigorous expressions of personal opinion.” While these factors may make it tough for a plaintiff to win, now that Trump has escaped liability in this case, he may make good on his campaign promise to “open up libel laws” so that plaintiffs can sue and “win lots of money.” So stay tuned.